Archives for July 2010

Negligent Allision of Moving Vessel With Stationary Vessel

Plaintiff, a yacht broker and expert fishing vessel operator, planned a weekend fishing trip with friends aboard the 29-foot M/V Tuner.  A tropical storm delayed the fishing trip, and the M/V Tuner remained docked in a marina.  Thereafter, Plaintiff noticed a 43-foot vessel, the M/V Special T, was heading directly towards the stationary M/V Tuner.  The M/V Special T’s operator, Defendant, could not control the boat due to loss of power, and his attempts to restart the engines failed.  He sent out an alarm to notify Plaintiff, who told Defendant not to start the M/V Special T’s engines.  Defendant nonetheless continued his efforts.  Although Defendant successfully restarted the M/V Special T as it came within feet of the M/V Tuner, a water surge from the newly-started engines caused Plaintiff to lose his balance and fall.  Ultimately, he was diagnosed with a fractured calcaneous bone in his right heel and awarded, among other things, $185,000 for pain and suffering.

The Court of Appeal of Louisiana, Fourth Circuit, agreed that Defendants were negligent.  Inland Navigation Rule 5 states that a vessel has a duty to “maintain proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”  33 U.S.C. § 2005 (2010).  The pilot of a vessel has a duty to navigate with proper lookout and at a safe speed.  Further, the fault of a moving vessel is presumed when that vessel allides with a stationary object. 

Here, the Fourth Circuit determined that Defendant failed to heed Plaintiff’s warnings not to start the M/V Special T’s engines.  Defendant instead attempted to manuever the vessel by putting its starboard engine in reverse, causing the M/V Special T to accelerate directly towards the M/V Tuner.  Even Defendant’s expert witness stated that a moving vessel does not typically collide with a stationary object unless the vessel was mishandled.  As such, the court found that Defendant failed to exercise reasonable care. 

Moreover, in affirming the district court’s ruling,  the Fourth Circuit determined that Defendant caused the collision.  Had Defendant not taken the M/V Special T out into a trapical storm, the accident could have been avoided.  Further, Defendant should have heeded Plaintiff’s warnings and stopped his attempts to restart the stalled engines.  See Inland Navigation Rule 8, 33 U.S.C. § 2008(e) (2010) (“if necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion”).

Finally, the Fourth Circuit affirmed a $185,000 pain and suffering award to Plaintiff, a $25,000 loss of consortium award to Plaintiff’s wife, and the application of Louisiana prejudgment interest as opposed to federal maritime interest rates. 

Wynne v. Trotter, 2010-CA-0090 (La. App. 4 Cir. 6/30/2010); — So. 3d —-, 2010 WL 2615804.

Knee Injury Did Not Lead to Depression, Alcoholism and Drunk Driving Death

In a brief unpublished decision, the Ninth Circuit recently affirmed the denial of benefits to a decedent-longshoreman’s estate and widow.  The longshoreman’s estate alleged that his knee injury led to depression and excessive drinking, which “resulted in his drunk driving death two years after the injury.”  Here, the Employer and Carrier rebutted the permanent total disability presumption related to decedent’s knee injury by demonstrating decedent could have engaged in suitable alternative employment as a parking lot cashier.  The evidence of record indicated that decedent’s psychological condition would not have prevented employment at this job, and that alcohol did not make decedent unemployable.

The Ninth Circuit affirmed the denial of death benefits to decedent’s widow because her claim was time barred.  Section 13(a) of the Act states that, “[e]xcept as otherwise provided in this section, the right to compensation for disability or death under this Act shall be barred unless a claim therefor is filed within one year after the injury or death.”  Here, decedent’s widow did not file a timely claim, and the court rejected her contention that “her grief rendered her mentally incompetent for several months after her husband’s death.”  The ALJ found no evidence of mental incompetence, and the BRB concluded that “at no time during the year [after decedent’s death] was she mentally incompetent.”

Morgan v. Cascade General Inc., Nos. 08-73371, 08-73463, 2010 WL 2835751 (9th Cir. 2010) (unpublished).

U.S. Department of Labor Releases New AWW Estimates

The U.S. Department of Labor, Division of Longshore and Harbor Workers’ Compensation,  recently released a preliminary estimate of the national average weekly wage for the period commencing October 1, 2010.  These figures are based on data compiled and published by the Bureau of Labor Statistics (BLS), which also provided information upon which to base estimates for the maximum and minimum compensation rates.

The Longshore community will note that Section 6(b)(1) of the Act, in all but limited circumstances, caps benefits at an amount not to exceed 200% of the applicable national average weekly wage. 

The following estimates apply to the period beginning on October 1, 2010 through September 30, 2011:

National Average Weekly Wage: $628.27
Maximum Compensation: $1,256.54
Minimum Compensation: $314.14
Percentage Increase: 2.60%

These figures are estimates, and an ultimate determination will not be made until final data is obtained.  Finally, we note that the percent increase in the national average weekly wage rises from 2.0% to 2.6%. 

The Scope of Repair Included the Defective Hatch Cover

Employees (Plaintiff and Intervenor) of Loredo Construction, Inc. (“LCI”), one of the named defendant in Plaintiff’s and Intervenor’s claims under Section 905(b) of the Longshore and Harbor Workers Compensation Act, filed suit against LCI and The Grand, Ltd., because of an accident that occurred while The Grand’s vessel was placed in drydock for repairs.  The Grand owned the subject vessel, a derrick barge, and turned it over to LCI for repairs.  Plaintiff and Intervenor were assigned the responsibility of repairing and refurbshing the vessel, including the pressure testing of tank P1.  Testing P1 required Plaintiff and Intervenor to seal the tank with a hatch cover.  While doing so, “the hatch came off while still under pressure, causing the accident that is the subject of this suit.”

LCI and The Grand filed motions for summary judgment.  LCI contended that it did not own or operate the vessel, and it did not breach any duty a vessel owner might own.  The Grand argued that, while it was the owner of the vessel, the vessel had been turned over to LCI at the time of the accident.  Further, The Grand aserted that it had no duty to inspect or supervise the repairs, and no duty to intervene.  The repairs were the cause of the accident, and The Grand had no duty to deliver the vessel in a “hazard-free” condition.

The United States District Court, Southern District of Texas, agreed.  Section 905(b) requires a vessel owner to warn a stevedore of hidden danger that would have been known to the owner in the exercise of reasonable caution.  See Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).  This duty does not extend to supervision or inspection to discover dangerous conditions within the confines of the cargo operations.  Id.  The Fifth Circuit previously reasoned that if an owner has no control over the ship or the repair work that creates the danger, it is not liable.  Stass v. American Commercial Lines, Inc., 720 F.2d 879, 883 (5th Cir. 1983).

Here, summary judgment was proper because no material disputed fact existed: “It is not material to this case, in particular, that there are disputes between the witness[es] concerning the details of the event.  It is material that the vessel was in drydock undergoing repairs.  It is also material that the scope of the repair work included pressure testing various tanks including the P1 tank.  Whether the hatch cover on the P1 tank had been replaced or not, it was within the scope of work for which repaires were commissioned.  Certainly pressure testing the P1 tank would require the hatch cover to pass inspection, whether replaced or not.”  In other words, the scope of pressure testing a tank extends to the hatch cover.  Both LCI’s and The Grand’s motions for summary judgment were granted.

Velez v. Laredo Offshore Services, Inc., 2010 WL 2757489 (S.D. Tex. 2010) (slip copy).